Exhibit 10.35
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE
144 UNDER SUCH ACT.
WARRANT TO PURCHASE COMMON STOCK
of
XXXXXXXX.XXX
This Warrant is issued to American Express Travel Related Services
Company, Inc., or its registered assigns ("Holder") by XxxXxxxx.xxx, a
California corporation (the "Company"), on September 14, 1999 (the "Warrant
Issue Date"). This Warrant is issued pursuant to the terms of that certain
Preferred Stock and Warrant Purchase Agreement dated as of the Warrant Issue
Date, a copy of which is attached hereto as Attachment A (the "Purchase
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Agreement").
1. Purchase Shares. Subject to the terms and conditions hereinafter
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set forth, the Holder is entitled, upon surrender of this Warrant at the
principal office of the Company (or at such other place as the Company shall
notify the holder hereof in writing), to purchase from the Company up to Three
Hundred Seventy-Five Thousand (375,000) fully paid and nonassessable shares of
Common Stock of the Company, as constituted on the Warrant Issue Date (the
"Common Stock"). The number of shares of Common Stock issuable pursuant to this
Section 1 (the "Shares") shall be subject to adjustment pursuant to Section 7
hereof.
2. Exercise Price. The purchase price for the Shares shall be
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$16.50 per share, as adjusted from time to time pursuant to Section 7 hereof
(the "Exercise Price").
3. Exercise Period. This Warrant shall be exercisable, in whole
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or in part, during the term commencing on the date thirty (30) days after the
Warrant Issue Date and ending at 5:00 p.m. on date one hundred twenty (120) days
after the Warrant Issue Date; provided, however, that in the event of (a) the
closing of the Company's sale or transfer of all or substantially all of its
assets, or (b) the closing of the acquisition of the Company by another entity
by means of merger, consolidation or other transaction or series of related
transactions, resulting in the exchange of the outstanding shares of the
Company's capital stock unless (i) the shareholders of the Company immediately
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prior to such transaction or series of related transactions are holders of a
majority of the voting equity securities of the surviving or acquiring
corporation immediately thereafter and (ii) each of such shareholders
immediately prior to such
transaction or series of related transactions holds the same pro rata share of
such majority of the voting equity securities of the surviving or acquiring
corporation as each hold of the Company immediately prior to such transaction or
series of related transactions, this Warrant shall, on the date of such event,
no longer be exercisable and become null and void. In the event of a proposed
transaction of the kind described above, the Company shall notify the Holder at
least twenty (20) days prior to the consummation of such event or transaction;
provided, however, that the Holder shall in any event have at least forty (40)
days after the Warrant Issue Date to exercise this Warrant. Notwithstanding the
foregoing, in the event of the termination of the Web Services and Travel
Agreement by and between the Company and the Holder, dated the date hereof (i)
as a result of a material breach of such agreements by Amex or (ii) by Amex
without cause, this Warrant shall immediately upon such termination no longer be
exercisable and become null and void.
4. Method of Exercise. While this Warrant remains outstanding and
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exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly executed
copy of the form of Notice of Election attached hereto, to the Secretary of the
Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. Certificates for Shares. Upon the exercise of the purchase
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rights evidenced by this Warrant, one or more certificates for the number of
Shares so purchased shall be issued as soon as practicable thereafter (with
appropriate restrictive legends, if applicable), and in any event within thirty
(30) days of the delivery of the subscription notice. In case the holder shall
exercise this Warrant with respect to less than all of the Shares that may be
purchased under this Warrant, the Company shall execute a new warrant in the
form of this Warrant for the balance of such Shares and deliver such new warrant
to the holder of this Warrant.
6. Issuance of Shares. The Company covenants that it will at all
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times keep available such number of authorized shares of its Common Stock , free
from all preemptive rights with respect thereto, which will be sufficient to
permit the exercise of this Warrant for the full number of Shares specified
herein. The Company covenants that the Shares, when issued pursuant to the
exercise of this Warrant, will be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens, and charges with respect to the
issuance thereof.
7. Adjustment of Exercise Price and Number of Shares. The number
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of and kind of securities purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
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Company shall at any time prior to the expiration of this Warrant subdivide its
Common Stock, by split-up or otherwise, or combine its Common Stock, or issue
additional shares of its Preferred Stock or
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Common Stock as a dividend with respect to any shares of its Common Stock, the
number of Shares issuable on the exercise of this Warrant shall forthwith be
proportionately increased in the case of a subdivision or stock dividend, or
proportionately decreased in the case of a combination. Appropriate adjustments
shall also be made to the purchase price payable per share, but the aggregate
purchase price payable for the total number of Shares purchasable under this
Warrant (as adjusted) shall remain the same. Any adjustment under this Section
7(a) shall become effective at the close of business on the date the subdivision
or combination becomes effective, or as of the record date of such dividend, or
in the event that no record date is fixed, upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In
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case of any reclassification, capital reorganization, or change in the Common
Stock of the Company (other than as a result of a subdivision, combination, or
stock dividend provided for in Section 7(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total price equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities and property receivable in connection with such
reclassification, reorganization, or change by a holder of the same number of
shares of Common Stock as were purchasable by the Holder immediately prior to
such reclassification, reorganization, or change. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to any
shares of stock or other securities and property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the purchase price per
share payable hereunder, provided the aggregate purchase price shall remain the
same.
(c) Notice of Adjustment. When any adjustment is required to
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be made in the number or kind of shares purchasable upon exercise of the
Warrant, or in the Warrant Price, the Company shall promptly notify the holder
of such event and of the number of shares of Common Stock or other securities or
property thereafter purchasable upon exercise of this Warrant.
(d) No Impairment. The Company and the holder of this Warrant
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will not, by any voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by the
Company or the holder of this Warrant, respectively, but will at all times in
good faith assist in the carrying out of all the provisions of this Section 7
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Company and the holder of this Warrant against
impairment.
8. No Fractional Shares or Scrip. No fractional shares or scrip
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representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
9. No Shareholder Rights. Prior to exercise of this Warrant, the
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Holder shall not be entitled to any rights of a shareholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon,
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exercise preemptive rights or be notified of shareholder meetings, and such
holder shall not be entitled to any notice or other communication concerning the
business or affairs of the Company. However, nothing in this Section 9 shall
limit the right of the Holder to be provided the Notices required under this
Warrant.
10. Transfers of Warrant. Subject to compliance with applicable
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federal and state securities laws, this Warrant and all rights hereunder are
transferable in whole or in part by the Holder to any person or entity upon
written notice to the Company. The transfer shall be recorded on the books of
the Company upon the surrender of this Warrant, properly endorsed, to the
Company at its principal offices, and the payment to the Company of all transfer
taxes and other governmental charges imposed on such transfer. In the event of a
partial transfer, the Company shall issue to the holders one or more appropriate
new warrants.
11. Registration Rights. The Shares issuable upon exercise of this
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Warrant, and any securities issuable upon conversion of such Shares, possess
certain "piggyback" registration rights as set forth in Section 5.2 of that
certain Amended and Restated Investors' Rights Agreement, dated the Warrant
Issued Date, by and among the Company and the Investors listed on Schedule A
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thereto.
12. Successors and Assigns. The terms and provisions of this
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Warrant and the Purchase Agreement shall inure to the benefit of, and be binding
upon, the Company and the Holders hereof and their respective successors and
assigns.
13. Amendments and Waivers. Any term of this Warrant may be
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amended and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Holder.
14. Notices. All notices required under this Warrant and shall be
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deemed to have been given or made for all purposes (i) upon personal delivery,
(ii) upon confirmation receipt that the communication was successfully sent to
the applicable number if sent by facsimile; (iii) one business day after being
sent, when sent by professional overnight courier service, or (iv) five days
after posting when sent by registered or certified mail. Notices to the Company
shall be sent to the principal office of the Company (or at such other place as
the Company shall notify the Holder hereof in writing). Notices to the Holder
shall be sent to the address of the Holder on the books of the Company (or at
such other place as the Holder shall notify the Company hereof in writing).
15. Attorneys' Fees. If any action of law or equity is necessary
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to enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
16. Captions. The section and subsection headings of this Warrant
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are inserted for convenience only and shall not constitute a part of this
Warrant in construing or interpreting any provision hereof.
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17. Governing Law. This Warrant shall be governed by the laws of
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the State of California as applied to agreements among California residents made
and to be performed entirely within the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be
executed by an officer thereunto duly authorized.
XXXXXXXX.XXX
By:
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Xxxxxxx Xxxxxxxx
Chief Operating Officer and Chief Financial
Officer
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY,
INC.
By:
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Name:
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Title:
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SIGNATURE PAGE TO XXXXXXXX.XXX
ONE HUNDRED TWENTY DAY COMMON STOCK WARRANT
NOTICE OF EXERCISE
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To: XxxXxxxx.xxx:
The undersigned hereby elects to purchase _________________ shares of
Common Stock of XxxXxxxx.xxx, pursuant to the terms of the attached Warrant and
payment of the Exercise Price per share required under such Warrant accompanies
this notice;
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
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By:
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[NAME]
Address:
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Date:
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Name in which shares should be registered:
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